Questions of Federal Preemption

Freedom of Thought Six-Part Zoom Webinar Series: Part 5

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Several states are considering how to regulate the content moderation practices of social media and other tech platforms.  Some are focused primarily on protecting a wider range of expressible user viewpoints, while other states are concerned with strengthening incentives on platforms to engage in more aggressive moderation of potentially harmful speech.  Some states are also pursuing antitrust enforcement actions against some tech platforms. Such state level regulation of national – even global – platforms, raises the prospect of a patchwork of competing state regulatory frameworks.  

States have their own antitrust statutes that can differ from federal standards, and historically have had authority to regulate and set boundaries for material that cannot be published, such as libel, and content harmful to minors.  How should we think about state regulatory efforts when applied to technology platforms - is regulatory federalism likely to be beneficial, or should federal law preempt such efforts?  What role can or should the FCC play in preempting such state regulation?  How does the Dormant Commerce Clause affect state level efforts to regulate content and content moderation policies of social media within state borders?

Featuring:

  • Hon. Brendan Carr, Commissioner, Federal Communications Commission
  • Daniel Francis, Furman Fellow, New York University School of Law
  • Paul Watkins, Managing Director, Patomak Global Partners
  • Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit 

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.